Case Description

Davis, et al. v. Cox, et al. is a lawsuit filed against 16 current and former members of the Olympia Food Co-op Board of Directors over their decision to boycott Israeli goods. The boycott is part of the global Boycott, Divestment, and Sanctions (BDS) movement against Israel for violations of international law and the denial of Palestinian human rights. The lawsuit was filed in a Washington State court by five co-op members seeking to block the co-op's boycott and to collect monetary damages against the board members, claiming that they acted beyond the scope of their authority and breached their fiduciary duties. The Center for Constitutional Rights and co-counsel Davis Wright Tremaine LLP argue that this action is an illegal Strategic Lawsuit Against Public Participation (SLAPP) and should be dismissed as it attempts to chill the board’s public statements on an issue of public interest. For more on the right to boycott, see our factsheet. This case is part of CCR’s efforts to support activists and grassroots organizations facing legal attacks for their advocacy on behalf of Palestinian human rights.

In line with a long history of social justice work, the board of the Olympia Food Co-op, a nonprofit corporation formed in 1976, passed by consensus a boycott of Israeli goods in protest against human rights abuses in Palestine. Subsequently, the co-op held annual board elections, and the five candidates endorsed by Olympia BDS won overwhelmingly. Three of the people who brought the case ran for the board opposing the boycott and lost. Instead of seeking a member vote on the boycott, they filed this lawsuit against board members.

The court holds that the Washington Anti-SLAPP statute, under which plaintiffs’ challenge to the co-op’s boycott had been dismissed, violates the right of trial by jury under the Washington Constitution and remands the case to the superior court for further proceedings. The court does not address the merits of the case.

Related Resources

Six amici briefs are submitted by: Jewish Voice for Peace, Palestine Solidarity Legal Support, the National Lawyers Guild, American Muslims for Palestine, and the International Jewish Anti-Zionist Network; the ACLU of Washington; Reporters Committee for Freedom of the Press; the State of Washington; the Washington Employment Lawyers Association; and the Washington State Association for Justice Foundation on December 5, 2014. CCR and co-counsel file their answer to amici briefs on January 8, 2015; petitioners also file their answer to amici briefs that day.

Plaintiffs petition the Washington Supreme Court for review on May 8, 2014. CCR and co-counsel file their answer to the petition for Washington Supreme Court review on June 30, 2014. The Washington State Association for Justice Foundation submits an amicus brief in support of plaintiffs' petition for review on July 15, 2014. CCR and co-counsel file their answer to the amicus brief on July 22, 2014. The Washington Supreme Court grants plaintiffs' petition for review on October 9, 2014.

The Washington State Court of Appeals affirms the trial court's dismissal of the lawsuit. The court holds that the lawsuit is a SLAPP and that participation in the boycott is protected by the First Amendment. The court also affirms $160,000 in statutory damages, as well as attorneys’ fees and costs for the board members, and awards attorneys’ fees for the appeal. The lawsuit is part of a broader pattern of targeting pro-Palestinian activists in the United States, particularly in legislatures and across college campuses.

Related Files

The Lawfare Project, which is dedicated, in its own words, to fighting "the effort by enemies of the State of Israel to delegitimize Israel and impair its ability to defend itself," submits an amicus brief on January 27, 2014. In their answer to the amicus brief, filed on February 11, 2014, CCR and co-counsel note that "the Project's amicus brief appears to be an extension of its campaign against organizations that boycott Israeli goods or services, this time filed under the guise of protecting Washington nonprofit corporations from allegedly 'rogue actions' by their corporate boards." We argue that "the amicus submission confirms the widespread ramifications of Respondents' efforts, and is a reminder of the significant matters of public concern at the heart of this appeal.... If anything, the Project's sudden involvement in this action shows that this blunderbuss lawsuit is, in fact, about silencing speech and initimidating Respondents, the majority of whom were not involved in the decision to boycott.... The Project has as its central mission the defense of Israel, not the enforcement of organizational bylaws, Washington's corporate governance scheme, or even free speech principles (which apply with equal force to all political speech). The brief and this lawsuit plainly target Respondents' exercise of their First Amendment right to advocate and implement a boycott."

Plaintiffs appeal directly to Washington Supreme Court; case is transferred to Washington State Court of Appeals

February - August 2013

Plaintiffs appeal directly to Washington Supreme Court; case is transferred to Washington State Court of Appeals

The plaintiffs appeal directly to the Washington State Supreme Court and file their opening brief on February 22, 2013, arguing that the trial court erred in granting the Anti-SLAPP motion and asking the court to reverse and remand the decision so that it can proceed on the merits. On May 24, 2013, CCR and co-counsel file their response brief, arguing that the trial court properly dismissed plaintiffs’ complaint under the Anti-SLAPP statute and the trial court's decision should be affirmed in its entirety. Plaintiffs file their reply brief on July 3, 2013. The Washington Supreme Court orders the case transferred to the Washington State Court of Appeals on August 6, 2013.

After a hearing on fees and costs, Judge McPhee rules that plaintiffs are liable for the costs and fees of the suit and $160,000 in statutory damages. The plaintiffs purported to bring the SLAPP on behalf of the co-op itself, which has approximately 22,000 members. They argue that the co-op should bear the costs rather than the plaintiffs individually. The judge rejects this argument and awards $10,000 for each defendant board member, plus attorneys’ fees.

Related Files

Following the dismissal of the case on the Anti-SLAPP motion, CCR and co-counsel file a motion for mandatory costs, attorneys' fees, and award, as prescribed under Washington's Anti-SLAPP statute, on March 20, 2012. Plaintiffs file their opposition to the motion on March 28, 2012, and defendants file their reply on March 29, 2012.

The court issues its oral opinion, deciding the Anti-SLAPP statute applies and stating that it is prepared to dismiss plaintiffs’ lawsuit and award defendants attorneys’ fees and penalties. The judge also upholds the constitutionality of Washington’s Anti-SLAPP law, which plaintiffs had challenged.

Press Release

Related Files

Hearing on CCR and co-counsel's Anti-SLAPP motion/motion to dismiss and plaintiffs’ cross-motion for discovery

February 23, 2012

Hearing on CCR and co-counsel's Anti-SLAPP motion/motion to dismiss and plaintiffs’ cross-motion for discovery

The hearing on CCR and co-counsel's Anti-SLAPP motion/motion to dismiss and plaintiffs’ cross-motion for discovery takes place at the Thurston County Superior Court before Judge Thomas McPhee. Judge McPhee issues a ruling denying plaintiffs' discovery motion.

CCR and co-counsel file a special motion to strike the lawsuit, urging the court to strike down plaintiffs’ effort to silence the co-op’s principled stand on Israel’s human rights violations through a policy of BDS. The special motion to strike requires parties who bring a lawsuit to demonstrate that it is not a Strategic Litigation Against Public Participation (SLAPP) suit targeting constitutionally-protected free speech. SLAPPs are civil complaints or counterclaims that target the constitutional rights of free speech and petition in connection with an issue of public concern, as well as lawful conduct in furtherance of such rights. While many cases that qualify as SLAPPs are without legal merit, they can effectively achieve their principal purpose: to chill public debate on specific issues. Defending against a SLAPP requires substantial money, time, and legal resources, and can divert attention away from the public issue and intimidate and silence others.

Five plaintiffs file case against 16 current and former board members of Olympia Food Co-op

September 2, 2011

Five plaintiffs file case against 16 current and former board members of Olympia Food Co-op

Five plaintiffs – members of the Olympia Food Co-op in Olympia, Washingto – file a lawsuit against 16 current and former members of the Olympia Food Co-op Board of Directors for their decision to boycott Israeli goods. In the complaint, plaintiffs seek to prevent the enforcement of the co-op's boycott policy and to collect damages, claiming the board members acted beyond the scope of their authority and breached their fiduciary duties, despite the fact that adopting the boycott was fully within the board's powers. Moreover, plaintiffs failed to utilize the co-op's member-initiated ballot procedure, which allows any member to put an issue to a full membership vote by collecting signatures from 300 members. Instead of seeking a member vote on the issue, plaintiffs decide to sue the board members in court.